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Alaska Natives at the Time of the Invasions: A Cultural Profile Project Draft 3 Do not quote or copy without permission from Mike Gaffney or from Ray Barnhardt at the Alaska Native Knowledge Network, University of Alaska-Fairbanks. Mike Gaffney suggests that one read the Teacher's Manual Preview first to get a good idea about the purpose and design of this secondary school textbook. Mike Gaffney Chapter 12
By now you should have completed the first two sections of the Cultural Profile Project on “Ecological Zones” and on “Settlements and Land Use.” From this point forward there are no more side trips. It is a straight shot to the end of the assignment. Here you study Social Organization. Then you move directly to Worldview and finish with Cultural Products. So let’s get started. Your work on this section of the Cultural Profile Project will provide a snapshot of how social relations were organized within families, communities, and even regions. It will show how your selected Native group sustained life through the economics of subsistence and commerce. Because discussion of traditional governance is rather tricky, you are asked to do some extra thinking about this element. Social Relations. Your assignment here is to describe how your selected Native group socially organized themselves, usually along kinship lines. Recalling our earlier discussion of the six parts of culture, this includes the main social institutions and the cultural rules governing people’s relationships within these institutions. A cultural profile of the Tlingit, for instance, requires description of such main social units as the clan and the household group and how membership in these kinship groups was determined by the rules of matrilineal descent. There is also a need to describe how all of Tlingit society was socially divided into mainly two parts. These parts are termed moieties [sometimes called phratries], and the fundamental cultural rule was that marriage must always be with a person of the opposite moiety. And don’t forget the key factors of Tlingit social stratification — a hierarchical society which included the institution of slavery. Multi-functional institutions. [function = an activity or role performed to accomplish a purpose. All social institutions exist to perform social functions.] Even if strictly not part of the kinship system, you should include any other significant institution. A good example is the qasegiq, the men’s house of the Central Yup’ik. Within the exclusively male qasegiq many social functions took place. Some of these were the economic and technological functions of maintaining hunting and fishing gear and preparing for group hunting or trading trips. Another was the spiritual function of directing significant community rituals and ceremonies. There was also the governance function of group decision-making by family leaders and elders of the qasegiq. Finally there was the educational function of older men giving continual instruction to younger men who also lived in the qasegiq. This brief description of the qasegiq raises an important point and presents you with a reporting dilemma. The important point is that like the qasegiq, major social institutions in any society can be multi-functional. The dilemma is that given all the social functions of the qasegiq, where in the Cultural Profile does discussion of it belong? Do you put it under main social institutions? Or under governance? Or under worldview? Indeed, you will find other social institutions which also serve more than one function in society. In traditional Tlingit society, for example, a key social institution was the potlatch. Dr. Rosita Worl, Tlingit anthropologist and Director of the Sealaska Heritage Foundation gives this description of the potlatch:
Here is another description of the potlatch given by Steve Langdon, who is also an anthropologist:
We know that theories on the distribution and consumption of resources is a major subject in university economics courses. Since Rosita Worl used the concepts of distribution and consumption, maybe you should put your description of the potlatch under economics. But the potlatch also served spiritual functions. So do you put it under worldview? It also had the social function of increasing clan or household social status through displays of wealth and generosity. So do you put it under social relations? Of course the greater the gain in social status, the greater the gain in political influence within the tribe’s system of governance. So do you need to say something about it as an element of governance? Where is the best place in the Cultural Profile to describe a major multi-functional institution is your choice. You may want to approach it as a single topic and say everything about it in one place. Or you may decide to put different aspects of the institution under several Profile elements according to function. Just keep in mind that many key institutions of any society – modern or traditional – are multi-functional like the qasegiq and the potlatch.
Economics: Native subsistence. The element of economics has two parts. The first part is a description of your Native group’s traditional subsistence activities. You have already described the fish and game inhabiting the ecological zone. Now you describe which fish and game were primary subsistence resources and which were secondary. A primary subsistence resource is one which a Native group heavily depended upon to maintain the expected quality of life. One way to determine what constitutes a primary resource is to ask: What would have happened if this resource was severely reduced or disappeared altogether? What, for example, would have happened to Southeast Alaska tribes if the salmon had stopped running? Or what would have happened to the Iñupiaq and Siberian Yupik whaling communities if the migration pattern of the Bowhead whale radically changed? If it could not be easily replaced, then it is a primary subsistence resource. We can think of what constituted secondary subsistence resources by asking: If the primary resource was severely reduced, what resources were available to take its place? And would these resources, taken together, been enough to maintain the expected quality of life for the same number of people? If, for example, the salmon had stopped running, what subsistence resources were still available to Southeast tribes? It may be that if the salmon had stopped running, the Tlingit and Haida people could still preserve their quality of life by harvesting other fish species, including shellfish, and by more aggressively hunting land animals. But would these secondary resources – even when added together – been enough to sustain the comparatively large, densely populated Tlingit and Haida settlements? And, of course, you want to highlight any special ways the group organized itself to carry out subsistence activities. We have already discussed one example which again comes to mind here — the institution of Eskimo whaling. Another is the “fence and corral” method of hunting caribou among interior Athabaskans. You also want to include how subsistence harvests were distributed among community members. Were there cultural rules about who received shares of harvested fish and game? For example, was distribution only to immediate family members? Or to extended family members or clan? Or was it expected that members of the entire community should share the harvest, perhaps based on the charitable principle of who needed what the most? Economics: Native commerce. In most discussions of traditional Native economics, this section would be entitled “Native trade.” But as pointed out earlier, we use the term commerce rather than simply “trade.” Why have we made this change in wording? The reason for the change is to emphasize the fact that Native trading activities ranged far and wide and were complex in their organization. Indeed, this often underrated aspect of traditional Native life was of such significance that the word, “trade” does not adequately capture the full meaning of what actually took place. Commerce is defined by most dictionaries as the large scale buying and selling of goods and services over a broad geographical area. The Crossroads of Continents map of North Pacific trade systems on the next page (Figure 13) illustrates the various commercial systems of pre-contact and early contact Native life. Take a good look at this map. Surely the number of different Native groups involved, the large geographic reach – indeed the intercontinental reach – of the various Native trade networks, and the extensive inventory of goods traded clearly fits the definition of commerce as we think of it today.2 Figure 13 The fundamentals of Native commerce. Using the Crossroads map as a visual aid, we make the point that Alaska Native groups conducted commerce reaching beyond the borders of their home territories, sometimes far beyond their borders. As with any commercial enterprise throughout human history, the purpose is to overcome the local scarcity of a valued product. This was done by trading for “foreign” products manufactured or harvested by people living in another ecological zone having the material resources to make these products. One of the first things you study in any economics course is the law of supply and demand. If there is high demand for a scarce product, the more it is valued. The more valued a product, greater will be the time and energy people spend making it. And, obviously, the more other people will pay or give in trade to acquire it. Of course you would prefer to acquire these scarce products by developing a favorable commercial relationship with those who have them. Unfortunately history also shows us that many times people have gone to war to acquire scarce resources. Traditional Native economies were as influenced by the law of supply and demand as are modern industrial economies. If you lived on the coast, for example, you had a good supply of seal oil for cooking and lighting, but you lacked the forest resources to produce highly useful wood products. If you lived in interior Alaska, on the other hand, the forest resources necessary to make wood products were all around you. But everyday interior life was made easier if you had a supply of seal oil with its cooking and lighting benefits. So what did Native people do in economic situations like this? They developed commercial networks based on the principle of supply and demand. From earliest times, Alaska Native groups have always enjoyed products developed from natural resources not found in their own ecological zones. This also included goods from other parts of the world, even before sustained contact with Russia and the West. Writing about the traditional commerce of Interior Athabaskans, the oral history scholar, William Schneider, says this:
The Native Commerce map lists other examples of valued products exchanged along ancient intercontinental Native trade routes. Some of these were jade, dogs, pipes, bowls, sea mammal oil and skins, and various fur peltries. Because they do not understand the overall significance of commerce in traditional Native economies, many are surprised at the remarkable speed with which Alaska Natives became shrewd traders within the new commercial systems promoted by the Russians, Americans, and agents of the Hudson Bay Company. Therefore they conclude that this speedy adaptation can only mean that Natives eagerly sought assimilation into Western culture. Let’s present another possibility. Assimilation and Western culture. In Alaska Native history the concept of “assimilation” is commonly used to describe how Native groups adopted Western ways, whether voluntarily or not. So what is meant by “Western culture”? Western culture generally refers to the Judeo-Christian traditions of European and American societies. One aspect of this tradition which has played a major role in the history of federal Indian policy is the belief that God has blessed human beings with a natural right and ability to exploit the environment and its resources in the name of “progress.” Historically, progress has been defined as the advancement of civilization through commerce, industry, and agriculture. Moreover, those who did not enthusiastically participate in the advancement of material progress was often viewed as sadly lacking an enterprising spirit, even as morally deficient. Closely related to progress are the Western cultural values of individualism and private property, which also are central features of capitalism. These two values reveal themselves time and again in United States Indian policy. The general idea is that progress is best achieved by unleashing energetic and creative individuals motivated by opportunities to acquire private property and other forms of material wealth. This Western idea of progress through private property ownership and individual achievement constantly clashed with the group-oriented communal property traditions of Native American tribes. The best example of how these core elements of the Western value system shaped American Indian policy is the 1887 General Allotment Act followed by the Surplus Lands Act. Recall that the purpose of the Allotment Act was to hasten the assimilation of Lower-48 Indian people into the American cultural ideals of private property and farming by breaking up tribal reservations into 160 acre family allotments or 80 acre individually owned allotments. Figure 14 below gives us a clear picture of Indian lands lost due to this and other congressional actions and policies. Federally protected Indian lands over which tribes had exercised internal sovereignty fell from 138 million acres in 1887 to just 48 million acres by 1934 – a loss of 80 million acres of Indian country in less than fifty years! Let’s take a quick moment to refresh our memory on the history of American Indian policy. We have described this history since 1880 as swinging back and forth between assimilation and termination on the one hand and self determination on the other hand. By the 1930s the disastrous consequences of the Allotment Act were well documented and the Roosevelt administration pushed Congress to pass the 1934 Indian Reorganization Act (IRA), with a version of it applied to Alaska in 1936. The main purpose of the IRA was to reconstruct Indian country by recovering whatever lost lands were still be available after all those years. The IRA also sought to have all Indian country governed by tribal governments organized according to American constitutional principles. But as we saw, Congress returned to assimilation and termination in the 1950s, not to swing back to self determination until 1975. Figure 14 Assimilation as two-way street. We come back to the issue of Western commerce and Alaska Native assimilation by asking: Just who was commercially assimilated by whom during the early contact period? Can it be argued that what occurred during those early years was actually the assimilation of Western traders into longstanding Native commercial attitudes and activities? An example would be the early years of the Hudson’s Bay Company at Fort Yukon where Gwich’in Athabaskans controlled trade with the Company’s agents. At the time, the Company’s supply lines were stretched over a thousand miles. This meant that re-supplying the Fort Yukon post with foodstuffs and trade goods was a slow and uncertain proposition, all of which made the Company’s agents more dependent on local Gwich’in for basic life-sustaining food and materials. The white traders at Fort Yukon soon found that many of the trade goods they had to offer were of little value to the Gwich’in whose own subsistence-based material for making winter clothing and other items was far superior. We go again to Bill Schneider who helps us understand the early Hudson’s Bay trader’s predicament. He provides us with this report from Alexander Murray who established the Fort Yukon post in 1847:
Another example is the early assimilation of whaling fleet traders into Eskimo commercial networks governed by Eskimo rules on how trade was to be conducted. We turn again to Tiger Burch. Using both written records and Native oral histories, his research shows that the history of contact between the Iñupiaq and many of the thousands of whalers and traders who came to the Arctic between 1850 and 1910 can be divided into an early and a late period.6 During the early period, 1850 to about 1870, it was the Iñupiaq and not the whalers who controlled the contact situation, including control of commerce. During this time the whalers and traders sailed in fragile wooden sailing ships and therefore had a well founded fear of Arctic sea and ice conditions. Burch reports that as many as seventy-six whaling ships were lost in the Northwest Arctic between 1860 and 1871. Indeed, whaling ship crews were well aware that surviving a ship wreck often depended on swift rescue by the Inupiat and the offer of food and shelter within Iñupiaq communities. They knew their very lives depended on how well they behaved among the local Inupiat. Of course we know Iñupiaq control of the contact situation was not to last. By the 1870s devastating changes were taking place. There was widespread famine and disease. Burch estimates that the Iñupiaq population of Northwest Alaska plummeted from 5,500 in 1860 to only about 1,100 in 1890. He notes that there was a more gradual drop in population during the first ten years. He thinks this was due mostly to Inupiat in the Kotzebue area moving south into Norton Sound. But from 1870 onward, the main culprits were disease and the “Great Famine,” which was caused largely by the almost complete disappearance of the Western Arctic caribou herd when it unexpectedly shifted from its usual migration pattern to routes outside the region.7 Another major change in Iñupiaq life occurring in the 1870s was the advent of steam powered whaling ships capable of maneuvering among ice flows. Their sturdy construction and steam power also meant that wintering over in the Arctic became a less risky experience. Now outsiders could easily stay all year in the Arctic and develop onshore commercial whaling and trading stations. Soon there was an ever increasing presence of outsiders in everyday Iñupiaq life as missionaries and government agents soon followed. Unlike the early period controlled by the Iñupiaq, these newcomers came with power. They controlled the distribution of western goods (food, clothing, tools, building materials) now required to sustain life in many Iñupiaq communities devastated by famine and disease.8 Certainly from the 1870s onward, an ancient way of life was under intense physical and cultural assault from many directions. Nevertheless, before the massive disasters of the late contact period, the great importance of commerce in traditional Iñupiaq life made assimilation a two-way street. During early contact, the energetic pursuit of new economic opportunities offered by outsiders was only an extension of traditional Native commercial customs. It did not signify a major change in attitudes and activities through assimilation. To the extent Western ways were adopted in the late period, most often it was the only life-sustaining option available given the devastating conditions of famine and disease. It was, therefore, the only reasonable response to life-threatening new conditions rather than an eager pursuit of Western values. Governance – a special research problem. The cultural profile element of Governance focuses on how decisions were made for and by the whole group as well as how law and order was maintained. This presents a special research problem because the systems of governance we are most familiar with today are so different from the ways Native governance was done in traditional times. Therefore extra thought is needed, particularly since the topic of traditional governance is central to any informed discussion of Native civic history and tribal rights today. (Recall the historical research required to become a federally recognized tribe.) As with education, our own experiences with modern governing structures are of little help here. In fact, our experiences with modern political systems such as state and city governments, IRA and traditional tribal councils, and with the police and the court system provide us with no clear “comparative referents” for the study of traditional Native governance. Comparative referents. Whenever we are confronted with something new, our first reaction is an attempt to make sense of the new thing by asking ourselves how this new thing compares to something I already know. Whether it is a religious ceremony or a marriage custom or even a tool, is there anything in my own experience that helps me understand this new thing? But beware! Within this natural human response to the new and the different lies yet another seed for ethnocentrism. Upon finding no clear comparative referents, we can start sliding down that short, slippery slope to the ethnocentrism discussed in earlier chapters. Our efforts to understand cultural differences can now become secondary to an evaluation of those “other people” according to our own cultural values and standards. It is no longer about understanding cultural differences. Now it is about identifying cultural deficiencies. Perhaps the best way to think about Native governance in traditional times is, first, to always keep in mind that all human communities down through time had ways of making decisions affecting the welfare of the whole group. Although perhaps not as loud and shrill as today’s American politics seems at times, complete community agreement on a major issue is hard to achieve in any society, whether traditional or modern. Some political process is always present because all groups must have ways to deal with internal controversy and disputes. While the nature of these early Native governing systems may not be readily apparent to us because we lack comparative referents, they certainly existed in some form. Just because we can’t find what we are looking for doesn’t mean it isn’t there in some form or manner. Secondly, since we lack clear comparative referents, it may be helpful to separate social function from social structure in our quest to understand traditional governance. Social Function. Recall during our earlier discussion of the six parts of culture we suggested as a key element of any culture is its “persistence over time.” But to persist over time, a society must create institutions which function to fulfill the essential everyday needs of its members. Critical organs of our human body such as the heart, lungs, and kidneys must continually perform certain functions for us to remain alive. Likewise, the organs (the institutions) of a society must perform certain functions to keep that society alive. Indeed, the elements we have identified as making up a society’s Social Organization, including worldview, directly reflect some of these necessary functions:
Social Structure. Various organs of the body such as the heart, lungs, and liver make up the physical structure of the human body. So also do functioning institutions make up the social structure of societies. Now the question becomes: What institutions of the social structure carry out which of the required functions? One characteristic distinguishing modern societies from those of traditional times is institutional specialization. Modern society seems to have established separate institutions to meet almost every social need. To understand this specialization, think about how many institutions we might deal with during a single, very busy day. Either face-to-face or through telecommunications devices such as the telephone and computer e-mailing, we might do business with agencies specializing in social and health services such as a Native non-profit organization, an office of the State of Alaska, or some BIA program. We can attend a service at any one of several churches representing different religious beliefs and practices. Our general economic well-being, including our job prospects, may depend upon contact with large corporations, including Native corporations, government economic development programs and agencies. Of course there is our everyday interaction with local businesses and with those doing subsistence hunting and fishing on whom we may depend for food. Our day could become even more hectic if we are involved in public affairs, perhaps as a village council member. To accomplish a civic goal such as better local fish and game management may require us to do political work at different levels of the governance structure. This could include meetings with local tribal and city councils and visits to state and federal officials and legislatures. Everyday, moreover, we count on state troopers, local police departments, Village Public Safety Officers (VPSOs), sometimes even the FBI, to keep us safe. If we have to go to court, we count on an extensive civil and criminal legal system to uphold a fair and just rule of law. It seems, finally, that we have a school or school system to carry out whatever educational function we or our children might need during that day. There is still another characteristic of modern institutional specialization. During our day of conducting lots of personal business, most often we will interact with strangers. It’s possible we know only one in five of the institutional representatives we contact on this busy day. So living with institutional specialization can also mean living in a highly impersonal world. This can even be the case if you live in a village, but especially if you live a city where strangers are part of your everyday life. Outside of local sources of subsistence foods, few of us have personal relationships with the people who actually produce and distribute much of what we eat. We may not even know who signs our paychecks. Certainly we probably don’t know the person who signs whatever checks we may receive from state and federal governments. And quite significantly, most of the time we have no personal relationship with those in state and federal governments who may exercise considerable power over our lives and our futures. To live in the modern times is to live in a world of strangers and be subject to distant power centers. Embedded institutional functions. In Native societies of the traditional past, it was a different situation altogether. There was little institutional specialization and all relationships were almost always personal and local. In contrast to the institutional specialization of modern society, the everyday activities of economics, education, governance, law enforcement, and spirituality were “embedded” in only a few local, mainly kinship institutions such as the extended family, band, or clan. Performing these functions was almost always viewed as the primary responsibility of a kin-related group. Under these conditions, a person’s everyday business was conducted with familiar people and not with strangers. You personally knew those who had the power to shape your life and future. Before the invasions, interaction with strangers was rare, ordinarily confined to distant trade and war. Without finding obvious institutional specialization, hence clear comparative referents, we of the modern world will always have difficulty understanding the social structure and functions of Native societies in traditional times. Embedded Native governance. Historically, Europeans found among many Native American societies few comparative referents to their own political experience of total control exercised by a Monarch (King or Queen) and his/her political and military representatives. Yet there were exceptions. The centralized political organizations of New World Native empires such as the Maya, Inca, and Aztecs made sense to Europeans. So did powerful Indian confederacies ruled by a well defined governing body like the Grand Council of the League of the Iroquois, or Indian nations ruled by a paramount chief like Powhatan in Virginia during the early 1600s. For the most part, however, Europeans had difficulty identifying the function and structure of governance among the Native American societies they encountered. Many times Europeans simply picked an individual who seemed to have some influence within the tribe and set him up as the “tribal authority” who would deal with them on behalf of the entire tribe. This political manipulation has been called “King-making” and the person chosen to represent the tribe was called a “pretend –chief.” In some cases, pretend-chiefs actually became very powerful people because now they controlled valuable goods flowing between the commercial worlds of the colonizer and the tribe. During the centuries of discovery, conquest, and colonization of New World indigenous people, the general European view was that Native groups had little, if any, political organization. Therefore they were not true political states with a sovereign authority to be respected. This ethnocentric view certainly was part of European thinking when they developed the “Doctrine of discovery.” And such ethnocentric evaluations of Native governance was certainly true for the Russian and American invaders. But these narrow-minded attitudes should not surprise us since we know Europeans were looking for institutions similar to their idea of a “political state” and for concepts of law similar to the Judeo-Christian traditions of Europe. Because political functions were so embedded in kinship institutions, proving the historical existence of a sovereign political authority which neatly fits the western imagination has been particularly difficult for many tribes, both inside and outside Alaska. And let’s not forget that a major requirement to qualify as a federally recognized tribe is proof of continual political authority and cohesiveness from historical times to the present. The Tlingit and Haida case and Native governance. We return once again to the 1959 Tlingit and Haida case. We have already discussed the dispute over whether a Native group’s valid aboriginal title can extend to lands not regularly used and occupied by them. Now we focus on another argument presented by the government lawyers – that the Tlingit and Haida were never politically organized according to the federal definition of a “tribe.” And since they were not true political entities, they could not possibly exercise any true authority over land. Therefore they could not possibly hold a legitimate aboriginal title to that land. Here is the key point. In rejecting this argument, the Court of Claims took a functional approach to legally validating the existence of traditional Tlingit and Haida systems of governance. Extensive research on the traditional cultures of the Tlingit and Haida, especially on the different social and political functions of clans, had already been done by the Indian Claims Commission. Citing the Commission’s research, the Court concluded that the lack of a separate, specialized political structure as we generally think of governance today did not mean the lack of a functioning political authority. The Court noted that the Tlingit and Haida had maintained their cultures and cultural identities from time immemorial. Such an epic achievement of social cohesion could not have been accomplished without continuous political authority. In traditional Tlingit and Haida cultures, this authority was embedded in the complex structure of clans and its rules were mostly out of sight to Europeans. Nevertheless, Tlingit and Haida social cohesion was well recognized by surrounding Native societies and by the Russians and other Europeans present in Southeast Alaska before the Americans. By way of summary, we can say that in traditional times the functions of governance were most likely embedded in the general day-to-day activities of kinship groups. We know we will find no specialized political institutions that clearly compare to the tribal, city, state, and federal governing bodies of our modern experience. We know, finally, that although embedded, the functions of governance had to exist in order for Native societies and cultures to survive through the ages. Even without separate institutions like tribal councils and courts, there still had to be functional forms of group decision-making, leadership and law. So now we concentrate our research questions on the remaining two aspects of governance – leadership and law. Leadership. In traditional Native societies, who were considered leaders when decisions involving the total group had to be made? At times of crisis and great controversy, to whom did members of the community look for direction? What individual or individuals did they expect to take the lead? For example, a key leadership role might be the hereditary head of an Aleut matrilineal household. Or it could be filled by a highly respected whaling captain among the coastal Iñupiaq. Or by a Koyukon Athabaskan chief with shamanic powers. Or perhaps by elders of a Central Yup’ik qasegiq. Or by a select group of matrilineal household leaders within a Tlingit clan. Here are some more questions about leadership. How did one become a leader and what powers did a leader have? Did you have to come from a high ranking family or clan to even be considered for a leadership position? On the other hand, was leadership mainly a question of demonstrated merit whereby a person who showed the most competence for a leadership role got the job? Over time did the group expect leadership from certain families who, from generation to generation, seemed to produce people with special talents? Or could leadership be found in certain wealthy families who passed on to the next generation a powerful economic asset such as a longstanding and lucrative commercial partnership with a wealthy individual or family of a distant tribe? Perhaps leadership was situational. A person was considered a leader for some situations such as hunting and fishing but not for other situations such as conducting foreign relations and war. On the other hand, was a person recognized as the group’s leader in all matters such as Shahnyaati, chief of the Deenduu Gwich’in band? Could a leader simply announce a decision and all others were obliged to follow? Or did leaders have to build a political consensus within the community on an issue before announcing a decision? Or maybe a community consensus on an issue simply emerged over time, and leaders were those who could best execute that decision. But again, complete agreement on an political issue is always difficult to achieve within any group at any time in any place. There is always the potential for conflict. There is, moreover, always some criminal behavior in any society, no matter how strongly members of the group believe in the cultural rules outlawing such behavior. And this brings us to law and order. Law and order. The first line of defense against anarchy and lawlessness is that members of society generally agree to a philosophy of law which distinguishes right behavior from wrong behavior and affirms how the laws will be enforced. As noted in Chapter Five, a philosophy or science of law is called jurisprudence. In fact, jurisprudence is simply the technical term for a society’s system of laws. [Anarchy = complete absence of political organization and control.] Like spiritual beliefs, philosophies of jurisprudence can differ greatly from culture to culture. Recall the point made earlier that the origin of any group’s law is derived most often from moral and spiritual beliefs. American jurisprudence, for example, is part of the larger Judeo- Christian tradition which arose through moral interpretations made of sacred texts like the Jewish Torah and the Christian Bible. And there is Islamic law based on centuries of moral interpretations made of their sacred text, the Qur’ãn. But rather than construct a list of research questions as we did for leadership, let’s use a piece of real Native American history to jump-start our thinking on traditional Native jurisprudence. A large cultural difference between American jurisprudence and that of many Native American tribes is found in their approaches to dealing with criminal behavior. Based on the Judeo-Christian tradition, the American approach is commonly referred to as retribution wherein justice is sought through finding guilt and assigning punishment. On the other hand, the tribal approach was often one of restitution which seeks to justly compensate the injured party for the wrong done to them. In their book, American Indians, American Justice, Vine Deloria Jr. and Clifford Lytle describe the difference:
Later in their book, Deloria and Lytle give a good historical example of the retribution – restitution difference when they review the facts of a very significant case in federal Indian law. The case is Ex Parte Crow Dog decided by the United States Supreme Court in 1883. [“Ex parte” = on behalf of…] It also takes us back to the 1885 Major Crimes Act referred to during our discussion of tribal sovereignty in Chapter Five. The case arose during the period, 1870 to 1890, a time of almost continuous hostilities between the Sioux Indian Nation and the United States government. Often using its armed forces, the federal government was relentless in its effort to put Indians on reservations. The Sioux and other tribes were equally relentless in their resistance to this reservation policy, resorting to armed conflict on many occasions.
In 1883, a Brûlé Sioux medicine man named Crow Dog killed a Brulé Sioux chief named Spotted Tail who was working closely with United States officials on a lands for peace plan. Because Spotted Tail was willing to compromise Sioux lands to get peace, the American press and many white settlers saw him as the best hope for negotiating a final land settlement favorable to the settlers’ interests. But the great Sioux chiefs Sitting Bull and Crazy Horse were adamantly opposed to Spotted Tail’s acceptance of most American demands. They aggressively resisted any further loss of Sioux territory and viewed many of Spotted Tail’s actions as traitorous. Following the killing, the relatives of both Crow Dog and Spotted Tail met to negotiate compensation for the victim’s family. As was the Sioux custom, Spotted Tail’s relatives sought restitution rather than retribution and revenge. They were also anxious to avoid any long-term quarrels which would weaken the tribe’s solidarity during those difficult times. After lengthy negotiations conducted by Brûlé peacemakers, Spotted Tail’s relatives agreed to a compensation package of $600, eight horses, and one blanket from Crow Dog’s people.
To the surprise of many Americans, on the appointed day Crow Dog simply walked into the federal marshal’s office at Deadwood, South Dakota and gave himself up for execution. To many Americans this was a brave and honorable act. He had given his word, had he not? Crow Dog received favorable press coverage and became somewhat of a romantic public figure. Acting on his behalf (ex parte), a group of lawyers filed a writ of habeas corpus with the U. S. Supreme Court. [Habeas corpus literally means “you have the body” in Latin. In today’s jurisprudence, a writ of habeas corpus is a warrant issued by a judge ordering a person’s release from jail because the police have detained him unlawfully.] The question facing the Supreme Court in the Crow Dog case was whether the federal government had jurisdiction over Indian-on-Indian crimes committed in Indian country. The Supreme Court reasoned that the only way the federal government had such criminal jurisdiction was if the Sioux had clearly given away this self-governing power when they signed the 1868 Fort Laramie Treaty. In other words, had such criminal jurisdiction been clearly extinguished by the Fort Laramie Treaty? The Court found no such extinguishment or “giveaway” language in the Treaty or in its amendments. Nor could they find Sioux criminal jurisdiction extinguished by any other act of Congress. The Court therefore ruled that the Sioux retained all jurisdiction over Indian-on-Indian crime committed on their reservation. Since a) the tribe’s justice system had already resolved the dispute through restitution and b) the federal government had no jurisdiction over the case, the Supreme Court issued the writ of habeas corpus and Crow Dog became a free man.13 The rest of the story. For sure, Crow Dog was an admired figure among segments of the American public. But the very idea of restitution as a lawful alternative to assigning guilt and seeking punishment for such a terrible crime as murder was repugnant to that same American public. It was consider a “primitive justice” having no place in civilized society. By the 1880s, moreover, the federal relationship with Indian tribes was undergoing a reexamination by Congress. This new political thinking suggested that if the Sioux and all other Indians were to become true Americans, tribal life in Indian country must undergo radical change. What Congress had in mind was a comprehensive policy consisting of two interrelated parts. The first part sought to compel Indian participation in the American capitalist economy with its emphasis on individualism and private property. The second part sought the assimilation of Indians into the Judeo-Christian worldview of American mainstream society. Of course we are talking about congressional thinking which eventually led to the 1887 General Allotment Act. But breaking up Indian country as well as promoting vigorous missionary work among tribes was not enough. Congress wanted a new Indian policy that included replacing the tribal restitution system of justice with the American retribution system. The freeing of Crow Dog provided just such a political opportunity, and Congress quickly took advantage by passing the Major Crimes Act in 1885. With the Crow Dog decision still fresh in the public’s mind, this was a popular political move indeed. Taken together, the General Allotment Act and the Major Crimes Act represent a monumental turning point in Native American history. The passing of Indian lands into non-Native ownership and control would now increase at a rapid and relentless pace. Obviously the extinguishment of tribal jurisdiction over major crimes in Indian country severely reduced tribal authority over law and order. From this point on, what remained of tribal lands and sovereignty would steadily diminish. We should not forget that the 1880s was also the time when American missionary activity in Alaska became well organized under Sheldon Jackson and swiftly expanded to most Native areas of the state. Rev. Jackson’s announced purpose was to “uplift the whole man,” a phrase which captured perfectly the assimilationist goals of American missionary work among Native American tribes.14 Progress required more than just spiritual uplifting. It required education, mainly the learning of vocational skills. And it required economic development. According to Jackson, only when these civilizing elements took root together could progress among tribes be achieved. Retribution and restitution are variables. A word of caution on drawing a bright line between the retribution approach and the restitution approach to achieving justice. As with hierarchical versus equalitarian social structures, we must be very careful not to create a false dichotomy by falling into the either–or trap. Elements of jurisprudence such as retribution and restitution are variables. We will find more or less of either one depending on the situation. The point is that American jurisprudence is not only about retribution and traditional Native American jurisprudence was not only about restitution. Deloria and Lytle acknowledge the variability of criminal justice when they say that the main objective of the traditional Native system “was more to ensure restitution and compensation than retribution.” What they are saying is that when a crime had been committed, traditional Native American tribes leaned more toward the restitution approach while American jurisprudence emphasized the retribution approach. There are plenty of recorded instances where tribes dealt with major crimes by imposing severe penalties, including execution and exile. American jurisprudence, furthermore, is of two parts: criminal law and civil law. While criminal law is certainly about determining guilt and punishment, civil law is about restitution – about compensating the injured party to the extent it can be done. Deloria and Lytle rightfully confine their discussion to only criminal jurisprudence. A strategy for researching law and order. To get your work on law and order quickly underway, start by testing the retribution versus restitution thesis. Did the traditional jurisprudence of your Native group lean more or less toward the restitution approach, and how so? Or was it a mix of the two and, again, how so? Along with jump-starting our inquiry, testing the retribution versus restitution question has another advantage. In the course of researching this question you should find basic information on your Native group’s law and order system. What were considered to be crimes, particularly major crimes? What institution or individuals functioned as “judges” and heard criminal complaints and determined guilt or innocence? Or was it left to the relatives of the victim to decide the punishment and carry it out? Was there anything like a police force? How might a wrong-doer be punished – by loss of property, by execution, by exile, etc.? There is still another advantage to starting with the retribution versus restitution question. Because it reflects two broad philosophical approaches to law and order, it quickly takes us to the connection between traditional jurisprudence and the main characteristics of your Native group’s traditional worldview. Already it has been suggested that the origins of a peoples’ legal code can be found in their core beliefs and values. Therefore some of your work on law and order may overlap with your work on worldview discussed in the next chapter. What we should be thinking about – key study questions.
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